In 2005, Nick Cave wrote a screenplay for a movie called The Proposition. The movie is set in Australian Outback in the mid-19th century, and tracks the movements of a man named Captain Stanley, who is attempting to bring a band of outlaws to justice.
This band of outlaws is the “Burns Gang,” whose primary membership consists of the four Burns brothers. Captain Stanley manages to capture two of the four brothers in a raid that leaves three brothers alive: Charlie, Mike and Arthur. Charlie and Mike are taken into custody, while Arthur, who is the Eldest of the brothers, remains at large, hiding out in a camp in the Australian wilderness.
While in custody, Captain Stanley makes a deal with Charlie: if he can bring Arthur to Captain Stanley within 9 days time, he will let Charlie go, and his younger brother Mike will not be hung. Stanley’s reasoning is that Arthur, as the oldest and perhaps most notorious member of the gang, would serve as a civilizing example to the rest of the population: if he can get to Arthur, he can reach into the mind of every outlaw in Australia, and prove to them that even the most cantankerous, notorious, violent and mad outlaws are not immune from society’s justice.
Charlie accepts Captain Stanley’s bargain. He sets out to find Arthur, and over the course of the next few days, he tries to find a way to bring Arthur back to Captain Stanley. By doing so Charlie means to save himself and, more importantly, save his younger brother.
The task turns out to be more difficult than Charlie originally believed. Arthur is manic, violent, and in some ways, unpredictable. His reputation for ruthlessness is known even among the aboriginals that populate the countryside, who refer to Arthur as the Dog Man. Both the Aboriginals and local police refuse to approach Arthur’s camp, for fear of what he is capable of.
As the days wear on, Captain Stanley begins to find it more and more difficult to keep the townsfolk at bay; they know that Mike Burns is in custody, and they want him brought to justice. Captain Stanley, however, knows that if he allows Mike to be fed to the crowd, he will lose Arthur. Captain Stanley therefore does his best to ward off the townsfolk until Charlie returns with Arthur.
Unfortunately, Captain Stanley finds himself unable to belay the bloodlust of the townsfolk. Mike Burns was directly involved in the theft and destruction of a local family’s farm, in the course of which he raped and killed a pregnant woman. The people want justice, and their cries for Mike Burns to be called to account for his heinous acts culminate in the cornering of Captain Stanley at the jailhouse:
Captain Stanley does his best to ward off the townsfolk. But they will not be deterred. Captain Stanley even goes so far as to threaten to shoot anyone who goes near Mike Burns. But then Captain Stanley discovers that his wife, played by Emily Watson, is among the townsfolk. She casts a ten-mile, piercing stare at Captain Stanley, and asks him a simple question:
What if it had been me?
Captain Stanley finds himself unable to answer. He drops the keys to the jailhouse, and the townsfolk seize the object of their bloodlust.
Mike is strapped to a whipping post. The local constable moves to pronounce sentence for Mike’s crimes:
My good people: Before you stands one of the vilest, most bloodthirsty villains this country has ever seen. Rapist. Looter. Murderer. His crimes are of the most heinous kind. Before the year is out, this man will hang. Today, he will be flogged. A message to all who would dare transgress the laws of this land.
100 lashes. Proceed.
The Executioner takes up his bullwhip, and over the hysterical, fearful cries of Mike Burns, the lashes are called out.
Michael’s screams rise high on the wind. He shrieks in ungodly pain with every length of skin flayed from his back, leaving long, bloody grooves in the meat of his body with each stroke. Droplets of blood fly through the air with every draw of the executioner’s potent, agile forearm.
Michael’s blood begins to leak from numerous open, long, bloody wounds on his back. We barely reach ten lashes, and already, we see Michael completely and utterly exposed: he is completely enveloped by exquisite, helpless, inconsolable suffering. We cannot know if Michael has come to regret his deeds in this moment. More likely than not, he is temporarily mad from the excruciating, merciless tears that the executioner’s whip has opened up across his back. We are never told for sure which is the case.
At this point, something changes in the crowd. A spark of recognition, subtle but visible, begins to beam across the faces of those gathered to witness the punishment of Mike Burns. Their lust for justice is slowly turning into something very different: a disconcerted amalgamation of worry and reluctance. Confusion wells up inside them as they see a fellow human being, however worthless his life, nonetheless being made to suffer unimaginable torment. There are no longer any smug or self-righteous faces. No one is sure that justice is being done. Their grief for the victims of Mike Burns gives way to a much more visceral concern for what’s left of the humanity of the otherwise worthless human being in front of them. Despite his crimes, and despite the fresh memory of his victims, they cannot help but be stricken with a sudden lack of conviction; the creeping sense that perhaps Mike Burns, despite his violent crimes, still remains a human being. And this is no way to treat a human being.
Yet the lashes continue. As the sickening crack of the executioner’s whip falls deftly upon Michael’s already-mutilated back, some of the townsfolk begin to turn away. Those who started with confidently folded arms and smiling faces now have looks of worry. Michael is so overwhelmed by his circumstances that he begins to lose his ability to vocalize the suffering he is enduring, as the pain of each lash is re-visited with unimaginable fury before he has time to recover from the previous blow.
By the time we reach 30 lashes, Michael has passed out from the pain. A thick pool of Michael’s blood covers the ground around the whipping post. The executioner finds it necessary to wring Michael’s blood out of the bullwhip before proceeding further. He squeezes the tendrils at their base, and runs his clenched fist down the length of the bullwhip. Michael’s blood pours into a small puddle beside the executioner, after which he continues his vicious work. A few lashes follow, and the crack of the whip can hardly be heard against the skin on Michael’s back now. There is hardly any left.
Captain Stanley’s wife is sickened. A brief moment of anticipation occurs before the 40th lash. The executioner too, it seems, is wondering why this is even necessary. Michael is unconscious, possibly dead from the shock. He looks at the constable, searching the man’s face for an answer to a question that he needn’t ask.
"Continue," the constable says.
The executioner reels back, and applies the lash to Michael’s lifeless back for the 40th time. Upon making contact with Michael, a slick of blood flies towards the executioner at an odd angle, catching him in the eye and causing him to reel back in shock.
Martha faints at the gruesome sight she has just witnessed. The constable moves to break her fall and helps her to stand upright. Captain Stanley, upon seeing his wife faint, approaches the executioner and removes the whip from his hands. Captain Stanley then marches to the constable, and shoves the whip abruptly into his chest, causing a small amount of Michael’s blood to splatter on the constable’s face. The constable is caught off-guard by Captain Stanley’s insubordination, but upon gathering his bearings, he gives Captain Stanley his walking papers.
Your days are over, Captain Stanley.
Captain Stanley doesn’t care about his job anymore. He embraces his wife, attempting to comfort her from the awful experience of watching a man be whipped half-to-death. The townsfolk are equally disturbed, and they disperse, their grief for the victims suddenly overwhelmed by their subtle but unmistakable sense that an equal injustice had just been done.
What this scene from The Proposition shows us is that there is a piece of humanity in every reasonable, sane person that prevents us from reveling in the suffering of others; no matter how terrible their crimes, or how grief-stricken we are for their victims. It is the same piece of humanity that gives a soldier pause before shooting and killing a human being for the first time, even if that same human being is trying to kill them. It is the same piece of humanity that allows a principled person to argue that prisoners should be treated with dignity, without being blamed for being unmoved by the suffering of the victims. It is the same piece of humanity that moved America’s Founders to include in the Bill of Rights a provision against Cruel and Unusual punishment, because they knew that a society which visits the same barbaric punishment which a deviant criminal does on his victims has a corrupting effect on public and private morality. By making an exception to the humanity of those who victimize others, we weaken our conviction that those very same acts are, under all circumstances, reprehensible, wrong and unjustified.
Earlier this week, it was revealed that Jerry Sandusky, long-time assistant coach in the Penn State football program, is alleged to have raped several young children over the course of his long career. Sandusky has been arrested, and the head coach of the football team, Joe Paterno, has been fired by the Board of Trustees of Penn State. He was fired for what many perceive as both professional and moral short-comings on Paterno’s behalf. Even though Paterno was not involved in the sexual abuse of children at Penn State, many believe that Paterno is culpable for enabling Sandusky’s behavior. Based on the limited facts that have been revealed to the press (I doubt most people have actually bothered to read the indictment), we see a picture emerging of a pedophile who used his position of authority to coerce young boys into having sex with him; and a head coach who either refused to believe it, or knew about it and refused to do anything to prevent it.
Many are sickened. We are all grief-stricken for the young children whose lives may have been irrevocably scarred at the hand of Jerry Sandusky. Many are calling for the death penalty. Some also want Joe Paterno to hang alongside Sandusky on the gallows. Paterno’s willful neglect makes him complicit in the rape of young children. And as such he should be held to accountable in equal measure.
As I watched all this unfold in the media, my thoughts turned to Norway. Back in July, Anders Brevik killed or wounded over 200 people in Oslo. Thousands of lives, comprised of those present for Brevik’s attack, and the friends and families of the victims, were irrevocably changed in an instant. Graduations that would never be celebrated. Marriages that would never be attended. Grandchildren that will never be spoiled. Wounds, both physical and psychological, that will linger for years to come in the bodies and minds of the victims.
For all this, Anders Brevik will only serve a maximum of 21 years in prison.
Is this just? Brevik single-handedly engineered the largest simultaneous loss of life in Norway since WW2. Yet the criminal justice system of Norway will not condemn him to the same life of regret, misery, pain, and unanswered questions that his victims and their families will be saddled with for some time. When Brevik goes free, it is not unreasonable to think that he will leave prison with a clear conscience. His writings suggest that he viewed his victims as complicit in a crime against the very society he lived in, and much like terrorists of other stripes, he therefore likely feels that what he did was justified. But he will still only be sentenced to 21 years in prison. That’s the most he will get.
Should Jerry Sandusky receive the death penalty if he is found guilty? No. He shouldn’t. He shouldn’t receive the death penalty because the death penalty demeans us. It demeans the victims. it serves only to sanction the most irrevocable kind of violence that we can possibly visit upon a human being; the very same violence we are supposedly trying to condemn the perpetrator for. The very same violence that disgusted us in the first place. The very same violence whose consequences compel us to feel mainsprings of sympathy for the victims, to rush to their bedside so as to lend our hand and our support. Yet it is the very same violence that the State applies imperfectly on a regular basis. Calling for the death penalty in cases like this makes it more difficult to call for its abolition generally. Calling for the death penalty in cases like this makes it more difficult to call for its abdication in cases where guilt is less clear. Calling for the death penalty in cases like this makes it difficult to save the lives of people like Troy Davis, whose death brought undeniable satisfaction and pleasure to quite a few people; the same undeniable satisfaction and pleasure that watching Jerry Sandusky’s death would bring to many of those who are disgusted by his alleged actions at Penn State.
What about Sandusky’s victims? If nothing else, shouldn’t he be put away for life so he can’t re-offend? If Sandusky is guilty, he is a pedophile. These individuals are afflicted by an intrinsic desire from which they cannot escape. Their crime is unlike murder or assault, which may be restrained by our sense of compassion; nor is their crime like theft, which is too often simply the result of material desperation. Their crime is unlike even the rape of an adult victim, because a rapist theoretically might be able to find a legitimate outlet for their desires through a consensual relationship. None of this is true for a person who is sexually attracted to young children. They cannot fulfill their desires without visiting grievous harm on a young human being. That in of itself is a strong case for locking them up permanently.
It is entirely possible that there is no good alternative to long-term incarceration under these circumstances. But there is an apposite problem that cannot be overlooked: our criminal justice system is imperfect. Human limitations prevent it from being otherwise. And even if we assume that it is 99% efficient, that still means that 1 out of every 100 individuals will be falsely convicted. It follows that when we justify harsh punishments, the moral calculus we are engaging in does not simply include the guilty person. It must necessarily include the harm we will inevitably visit on the 100th person, who is entirely innocent, yet must be afflicted by strictest injustice: being stripped of their humanity by a system which has “proved” them to be a heinous, vile criminal, and living under the Scarlet Brand that society has visited upon them. Troy Davis felt that brand every day of his life.
It is in this realization that we come to understand why it is ok that Anders Brevik will only serve 21 years in prison, and why we should give pause before calling for the unchained flagellation of Jerry Sandusky. When we call for harsh punishments and long sentences, we are inevitably calling for those sentences and punishments to be applied to innocent people as well. We cannot think only of the vile perpetrator whose guilt is insurmountable. We must also think of the unfortunate innocent who the system convicts wrongfully, and then subjects them to the same punishment as the vile perpetrator before them. It is here I must state that I would rather dangerous criminals go free prematurely, than know that even one innocent man endures the living hell of a wrongful conviction (which includes the derison, hatred, and disapprobation of the public at large, even after they leave the jail house), any longer than they’d otherwise have to. This admittedly gives criminals occasion to re-offend; but in this regard, I have far more faith that families, friends, loved ones, schools, communities, and other facets of civil society are better equipped to prevent the future victimization of their loved ones than the criminal justice system is at preventing innocent people from being immolated on the cross of our criminal justice system. I can protect my son or daughter, to an admittedly limited extent, from a rapist or murderer. But I cannot protect them from the State’s misapplied justice. Not without becoming a criminal myself. When we call for the head of Jerry Sandusky, we are, in part, putting our own lives at risk.
Some may find this logic unconvincing. I don’t blame them. It is difficult to shake the image of a child predator selfishly stealing the innocence of young children through a most vile and unspeakable act, and then be allowed to continue to do so after the suggestion is made to his friends and colleagues that those acts are taking place. I can understand being angry that Joe Paterno did not do more; I can understand being angry that he chose only to alert his immediate superiors, and then failed to tell the police. But I also find myself taken aback by the vigorous moral certainty that people seem to display when they condemn Paterno’s inaction. I think they are far too certain of themselves.
The reaction of at least one person close to Jerry Sandusky informs us as to why:
If this is all true, and it looks like it’s really stacking up, something took over his personality,” Richael, who was born with hip dysplasia and walks with a cane, said. “Something changed, and it’s not the Jerry I know.”
Consider the number of people that celebrated and mourned Michael Jackson’s death. It is a well-known fact that Jackson was accused on several occasions of raping and/or molesting children. Many of Michael Jackson’s fans refused to believe that he was capable of committing these acts. Jackson’s fans came out in droves to support him. The many memorials to his passing suggest that many people still do not believe Jackson was a child molester. In doing so, of course, they implicitly deny the voracity of the victims’ stories. In doing so, they no doubt made it more difficult for the alleged victims and their families to seek justice. But Jackson’s fans were not supporting him out of spite for the potential victims. They were supporting him because they refused to believe that a person who they’d come to love, admire and respect over the years was capable of the heinous crimes of which he’d been accused. That is a natural human reaction. And if that is the reason why Joe Paterno found himself unable to do more, it should not come to us as a surprise. Least of all, it should not give us reason to think that Joe Paterno is equally culpable. He acted the same way I think most of us would: with skepticism and disbelief, unable to comprehend that a loved and respected colleague could be capable of such excrescent, damnable acts.
Joe Paterno had a professional obligation to pursue the accusations against Sandusky in greater detail. He did not do so and he deserved to be fired for it. But I do not believe that this makes him a moral failure; anymore than fans of Michael Jackson who refused to believe, and still refuse to believe, that Jackson was capable of molesting a child.
Jerry Sandusky will be put on trial. Joe Paterno may find himself in legal trouble as well. It is quite likely that Paterno will find himself the target of a civil suit for negligence. But as we contemplate what happened at Penn State, and we think about the suffering of the victims, the reactions of the parties involved, and the appropriate punishment for those responsible, we cannot forget how dangerous our desires for retribution can be. We cannot forget that buried somewhere in Jerry Sandusky is a human being, however worthless his crimes may have made him. We must not forget that the chorus of angry, blood-soaked cries for vengeance and justice too often lead us down a road from which there is no return.
I have no doubt that a few will reach the end of this post unmoved. Some might even view this as mere apology for a child rapist. All I can say to you is this: if you believe that you can bear to snap the lash passed the 40th stroke upon Jerry Sandusky’s back, then I will gladly hand you the whip. I cannot do it. If that makes me weak, so be it. But I must preserve my ability to forgive, lest I lose the very empathy whose absence from Jerry Sandusky’s mind has so grossly inflamed our sense of injustice.
I cannot whip the Nittany Lion.
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